AIDS-Free World Takes on Jamaican TV in Constitutional Legal Challenge
December 14, 2012 - It's David and Goliath all over
again. AIDS-Free World produced a paid public service
announcement called "Love and Respect" advocating tolerance for LGBT people. The two major TV stations in Jamaica
refused to air it. AIDS-Free World did not fold up its tents and slink away. Instead, our Legal Advisor on Marginalized
Groups, Maurice Tomlinson, who appears in the video , launched
a legal challenge against the stations. The first hearing was held this week on December 12th.
The outcome of the preliminary hearing is significant. The court assigned the case for a formal
hearing from May 27 to 31, 2013. It will be heard by a panel of three judges. It is a constitutional case of
such significance that no costs will be awarded to either side ... at issue is the interpretation of the
new Jamaican Charter of Fundamental Rights and Freedoms. It is the first time that a case between two
"private" individuals has dealt with such a constitutional challenge (the TV stations are defined
as "private citizens," and are being sued by Maurice Tomlinson for a breach of a constitutional
right). South Africa is the only other country where such a legal challenge is possible.
The TV stations, TVJ and CVM, are represented by well-respected senior counsel, emphasizing yet
again the significance of the case.
At the preliminary hearing, it became clear that the TV stations will argue three points:
. First, a TV station can refuse to air a paid advertisement that is consistent with all
broadcasting regulations, if it believes the ad will cause them a loss of revenue or decline in ratings.
. Second, a TV station can refuse to air a paid advertisement that is consistent with all
broadcasting regulations, if it believes that the staff and facilities will be put at risk as a result
of the public response.
. Third, the airing of "Love and Respect" amounts to promotion of an illegal activity.
Maurice Tomlinson and AIDS-Free World believe that all three arguments are specious. Both TV
stations have admitted to airing pro-gay material in the past without any real repercussions whatsoever.
This case will attract the attention of human rights activists in the Caribbean and around the
world. AIDS-Free World hopes and expects that the United Nations family in particular will speak out in
support of Maurice's legal challenge. On the very day of the hearing, the Secretary-General of the
United Nations made the strongest statement on LGBT rights that he has ever delivered:
"Around the world, lesbian, gay, bisexual and transgender (LGBT) people are targeted, assaulted
and sometimes killed ... More than 76 countries still criminalize homosexuality ... it is an outrage that in
our modern world, so many countries continue to criminalize people simply for loving another human being
of the same sex ... these laws must go. This is a State obligation ... When I meet with leaders from
around the world, I raise my voice for equality for LGBT people. Many leaders say they wish they
could do more. But they point to public opinion as a barrier ... but just because a majority
might disapprove of certain individuals does not entitle the State to withhold their basic
rights. Democracy is more than majority rule. It requires defending vulnerable minorities
from hostile majorities. Governments have a duty to fight prejudice, not fuel it."
All levels of the UN obviously have an equal duty to speak out on all matters of LGBT rights.
The UN has a special duty when it knows that discrimination against LGBT people leads, inexorably, to higher
rates of HIV infection. The Executive Director of UNAIDS has made strong public statements consistent with
the sentiments of the Secretary-General of the United Nations. Alas, the same is not true of the
leadership of UNAIDS in the Caribbean. There has been far too much ambiguity, complicity by
silence and friendly, impotent chatter behind closed doors. This constitutional challenge
in Jamaica provides an opportunity for the regional UNAIDS leadership to make its voice
heard. The time for moral lethargy is over.
More information on the case can be found here and here .
Source: AIDS-Free World
For more information:
Legal Advisor, Marginalized Groups
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